NOTICE OF MOTION

XXX

Street Address

City, State Zip

Phone Number (with area code)

Fax Number (If applicable)

Email Address (If applicable)

In Pro Per

 

 

IN THE CIRCUIT COURT

SEVENTH JUDICIAL CIRCUIT

IN AND FOR XXX COUNTY, XXX

 

 

State of XXX,

 

Prosecution,

 

vs.

 

XXX,

 

Defendant(s)

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 Case No.: XXX

 

 

DEFENDANTS’ MOTION TO COMPEL DISCOVERY, SUPPRESS EVIDENCE, AND DISMISS CHARGES DUE TO BRADY VIOLATIONS, MISCONDUCT, AND WITHHOLDING EXCULPATORY EVIDENCE

 

 

NOTICE OF MOTION

TO ALL ATTORNEYS AND PARTIES OF RECORD:

I intend to file a Comprehensive Motion to Compel Discovery, Suppress Evidence, and Dismiss Charges to be heard on (Date), at (Time)

The motion will address significant concerns regarding potential Brady violations, misconduct, and the withholding of exculpatory evidence. It will also address issues such as illegal searches, file deletions, missing log files, and other instances of alleged misconduct that have been brought to light during our investigation.

 

 

Dated this _____ day of August,XXX

 

Respectfully Submitted,

 

 

 

 

_____________________

XXX,

Appearing in pro per

 

 

 

 

 

 

XXX

Street Address

City, State Zip

Phone Number (with area code)

Fax Number (If applicable)

Email Address (If applicable)

In Pro Per

 

 

IN THE CIRCUIT COURT

SEVENTH JUDICIAL CIRCUIT

IN AND FOR XXX COUNTY, XXX

 

 

State of XXX,

 

Prosecution,

 

vs.

 

XXX,

 

Defendant(s)

 )

)

)

)

)

)

)

)

)

)

 Case No.: XXX

 

 

DEFENDANTS’ MOTION TO COMPEL DISCOVERY, SUPPRESS EVIDENCE, AND DISMISS CHARGES DUE TO BRADY VIOLATIONS, MISCONDUCT, AND WITHHOLDING EXCULPATORY EVIDENCE

 

NOW COME the Defendant herein, Brooks Mclean Mitchell, and files this motion to compel discovery, suppress evidence and dismiss charges due to Brady violations, misconduct, and withholding exculpatory evidence with the following exhibits attached for support of the motion:

  1. Exhibit 1- Prior Cell Phone Search dated XXX
  2. Exhibit 2- Yahoo Search Warrant for available activity captured and stored from the dates of March XXX
  3. Exhibit 3- Yahoo Subpoena
  4. Exhibit 4- Craigslist Subpoena dated XXX

And for cause would show this Honorable Court as follows:

 

  1. Compelling Discovery
  2. Neither federal nor Florida state prosecutors are legally permitted to keep exculpatory evidence from the defense. In the case of XXX, the U.S. Supreme Court ruled that a Defendant’s constitutional right to due process of law is violated when a prosecutor conceals or fails to disclose material evidence relevant to the Defendant’s guilt or punishment.
  3. In the case of XXX, the court held that requiring the prosecutor to assist the defense in making its case, the Brady rule is a representation of a limited departure from a pure adversary model. This is owing to the fact that the prosecutor’s role transcends that of an adversary.
  4. Thus, in the current case, the prosecutor ought to serves as a representative not of an ordinary party to a controversy, but of a sovereignty whose interest in a criminal prosecution is not that it shall win a case, but that justice shall be done.
  5. Additionally, as per the Brady decision, prosecutors are obliged to turn over to the defense:
  6. Evidence that tends to exonerate the accused.
  7. Evidence that materially impeaches any fact or witness.
  8. Evidence that would lessen the punishment.
  9. Any evidence that supports a valid defense to the charge.
  10. Any material exculpatory evidence.
  11. In the current instance, the material withheld by the state officers and prosecution, being Prior Cell Phone Search dated XXX (Exhibit 1), the Yahoo Search Warrant for available activity captured and stored from the dates of XXX (Exhibit 2), the Yahoo Subpoena (Exhibit 3) and the Craigslist Subpoena dated XXX (Exhibit 4) are material to the exoneration of the Defendant, are likely to lessen the probable punishment if convicted, and more significantly exculpatory evidence. Accordingly, the Defendant pleads with this court to compel the discovery of the same.
  12. Moreover, in the case of XXX, the Court rule on how nondisclosure by a prosecutor violates due process as follows:

“It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which, in truth, is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.”

  1. Accordingly, the suppression by the prosecution of evidence favorable to the Defendant despite several requests amount to a violation of the due process since the evidence being withheld is material either to his guilt or punishment, irrespective of the good faith or bad faith of the prosecution.
  2. The information being withheld by the Prosecution is not privileged and is relevant to the current matter. Moreover, it relates to the defense of the Defendant. Accordingly, the Defendants asks this honorable court to compel the State and relevant parties withholding the information to issue the same to the Defendant to enable him adequately and efficiently defend his case.
  3. In the case of XXX, the Court established that the main principle is not punishment of society for misdeed of a prosecutor, but avoidance of an unfair trial to the accused person. Further, that society wins not only when the guilt are convicted, but when criminal trials are fair and the system of the administration of justice suffers when any accused is treated unfairly.
  4. In light of the preceding, the prior Cell Phone Search, the Yahoo Search Warrant, the Yahoo Subpoena and the Craigslist Subpoena being withheld by ASA Erica Kane and Police Detective Dennis Gonzalez are material to exculpating the Defendant and would aid in reducing the penalty hence shape a fair and just trial.

 

  1. Brady Violations
  2. In agreement with the Brady decision, the Florida Supreme Court in the case of XXX held as follows:

“To comply with Brady, the individual prosecutor has a duty to learn of any favorable evidence and to disclose that evidence to the defense.”

  1. Accordingly, ASA Erica Kane and Police Detective XXX are obliged to disclose the evidence it is withholding. Precisely, the Prior Cell Phone Search, the Yahoo Search Warrant, the Yahoo Subpoena and the Craigslist Subpoena.
  2. In XXX, the Florida Supreme Court, while making reference to XXX , held that to successfully raise a Brady violation claim, aa party must demonstrate must show that:
  • the evidence was favorable to him, either because it was exculpatory or impeaching;
  • the evidence was suppressed by the State; and
  • The suppression of material evidence resulted in prejudice.
  1. Further in XXX  the court held thus:

“To establish the materiality element of Brady, the defendant must demonstrate ‘a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Id. at XXX. A “reasonable probability” is defined as “sufficient to undermine confidence in the outcome.” XXX.”

  1. Additionally, according to XXX , the court held that to prove a Brady violation, a party must demonstrate to the court that the State knew there was a discrepancy in the Cops email and my email.
  2. In light of the preceding, in the current case, the state was worried enough to do a search warrant and 2 subpoenas and authenticate the 20 emails. The information would have discredited the key witness (XXX).
  3. Moreover, the relevant emails were deleted by the key cop hence no significant information as traced in the Defendant’s yahoo email other than the 19 emails from the Craigslist server report with signatures from CL legal department.
  4. Furthermore, the was no substantial information gathered as a result of the Yahoo search warrant or 2 other subpoenas. The State also failed to search the Defendant’s tablet hence a gap in the investigation.
  5. The Defendants also believes that if the preceding information was known to the jury, a different outcome would have happened hence reconsideration of the Defendant’s contention.
  6. Moreover, the Defendant questions the result of 20 emails vs 19 emails which could be a posted graphic photo fabricated by the witnesses hence did not exist. The Defendant thus requests for the omission and suppression of all the testimony and evidence from the key cop and impeachment of the said cop for fabricating evidence hence professional misconduct and Brady violations.
  7. The Defendant also relies on the holding in XXX where the court held that a Brady claim must be raised as soon as the undisclosed evidence comes to light. Accordingly, since the evidence is in the government’s possession and control, the defense does not know anything about it to make the claim until the prosecution discloses or someone other person reveals it.
  8. Moreover, as per the Brady decision, once the evidence comes to light, the claim must be raised either at the trial or on appeal. If the defense learns of the undisclosed evidence at trial or on appeal, the defense must raise the claim or make use of the evidence during those stages. On Habeas Corpus, if the undisclosed evidence is not discovered until after the accused is convicted and the appeal is over, the Brady claim must be raised on habeas within the habeas limitations period (if it has not expired), or within 1-year of discovery of the evidence (if the limitations period already expired). The Defendant believes that the information withheld in his case would have been vital to his entrapment defense and that he is well within time to raise the claim for a Brady violation.
  9. Professional Misconduct
  10. The ABA Model Rules of Professional Conduct Rule 3.8 makes provision for special responsibilities of a prosecutor. The said provision provides as follows:

“A prosecutor should make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in conjunction with sentencing, to disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.”

  1. In light of the above-referenced provision, the prosecutor along with its officer, ASA Erica Kane and Police Detective Dennis Gonzalez inclusive are bound to disclose the information they have in their custody that would aid in negating the Defendant’s guilt. Such include the Prior Cell Phone Search, the Yahoo Search Warrant, the Yahoo Subpoena and the Craigslist Subpoena.
  2. Thus, by failing to disclose the said information, the prosecution is guilty of professional misconduct and should be held accountable for the same by this honorable court.
  3. Furthermore, once a police or state possesses materially exculpatory evidence, there is a duty to preserve it. Hence destruction may be cause for a due process dismissal. In the case of XXX, the court held thus:

“If the evidence in question is only potentially useful, as opposed to clearly exculpatory, then a criminal defendant must prove bad faith on the part of the police to make out a due process violation.”

  1. Moreover, by deleting files, conducting illegal searches, failing to follow up on the missing log files from phone extraction device and Kelly Vought, the key cop, losing his cell phone before it was to be handed over all amount to professional misconduct since the said actions resultantly denied the Defendant exculpatory evidence which he is entitled to thus amounting to a due process violation and professional misconduct.
  2. The Prior Cell Phone Search, the Yahoo Search Warrant, the Yahoo Subpoena and the Craigslist Subpoena are all favorable to the Defendant since they are exculpatory. Further, this honorable court should take notice that the Defendant just discovered the Yahoo Search Warrant, Yahoo Craigslist Subpoena in June and July of 2023 through FOIA requests hence the evidence is new and the Defendant has not acquainted himself with the same. The court was also denied the chance to view the said evidence and the Defendant has spent a year in jail followed by 2 years’ probation. Moreover, the said evidence has been suppressed by the prosecution which has resulted in prejudice against the Defendant. Accordingly, the Defendant’s case amounts to a Brady violation claim that this honorable court ought to address.
  3. Furthermore, had the evidence been disclosed to the defense, the same would greatly aid in negating the Defendant’s guilt and punishment in the event of a conviction.

PRAYER FOR RELIEF

REASONS WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request this Honorable Court to GRANT them the following reliefs:

  1. ORDER the prosecution to facilitate discovery of the exculpatory evidence;
  2. DECLARE a Brady violations by the Prosecution as against the Defendant.
  3. GRANT the Defendants the Motion to compel discovery, suppress evidence, and dismiss charges due to Brady violations, misconduct, and withholding exculpatory evidence as prayed;
  4. AWARD Defendants such further relief as this Court deems fair and proper.

 

Dated this _____ day of XXX

 

Respectfully Submitted,

 

 

 

 

_____________________

XXX,

Appearing in pro per

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

XXX

Street Address

City, State Zip

Phone Number (with area code)

Fax Number (If applicable)

Email Address (If applicable)

In Pro Per

 

 

IN THE CIRCUIT COURT

SEVENTH JUDICIAL CIRCUIT

IN AND FOR XXX COUNTY, XXX

 

 

State of XXX,

 

Prosecution,

 

vs.

 

XXX,

 

Defendant(s)

 )

)

)

)

)

)

)

)

)

)

 Case No.: XXX

 

 

DEFENDANTS’ MOTION TO COMPEL DISCOVERY, SUPPRESS EVIDENCE, AND DISMISS CHARGES DUE TO BRADY VIOLATIONS, MISCONDUCT, AND WITHHOLDING EXCULPATORY EVIDENCE

 

PROPOSED ORDER

Upon consideration of the Comprehensive Motion to Compel Discovery, Suppress Evidence, and Dismiss Charges brought forth by the defense, and after thorough examination of the evidence, arguments, and legal precedents presented therein:

It is hereby ORDERED that:

The Motion to Compel Discovery is GRANTED. The prosecution is directed to promptly provide all withheld exculpatory evidence, log files, and any other relevant information to the defense.

The Motion to Suppress Evidence is GRANTED. Any evidence obtained through illegal searches or obtained in violation of the defendant’s rights is deemed inadmissible.

The Motion to Dismiss Charges is GRANTED. Due to substantial Brady violations, misconduct, and the withholding of exculpatory evidence, the charges against the defendant are hereby dismissed with prejudice.

 

The Court acknowledges the seriousness of the allegations of misconduct and suppression of evidence, and directs that XXX and Police Detective Dennis Gonzalez be investigated and held accountable as appropriate under the law.

The Court further orders that all relevant materials, including evidence, motions, and documentation, be maintained for potential further legal proceedings.

 

Dated: [Date]

[Judge’s Signature]

[Judge’s Name]

Presiding Judge

 

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